5.  The applicant was born in 1953 and lives in Bucharest.
6.  The applicant married M.S. on 19 August 1993. On 9 March 1994 their daughter E. was born.
7.  At the petition of the applicant the marriage was dissolved by a final decision of 27 January 1998 and M.S. was awarded resident parent status. The said judgment did not include contact arrangements for the applicant, as no such request was made.
8.  According to the applicant and to the information available in the case file, in the period following the divorce and until the end of 2002 or the beginning of 2003, he was able to see E. without any restrictions. Their relationship was close and affectionate.
9.  During the Christmas holiday of 2002 the applicant announced to E. that he was remarrying and that he and his new wife were expecting a new baby girl.
10.  From that point onward, E. started refusing to meet him on her own, expressing the wish that her mother also be present during these meetings. The applicant’s explanation was that M.S. was trying to punish him by preventing him from having contact with his daughter, after she realised that he was starting a new life and that the separation from her was therefore final.
11.  On 4 February 2003, the applicant brought an action for the establishment of his rights of contact with the child. He stated that M.S. was not respecting his right to spend time alone with their daughter.
12.  During the proceedings, M.S. indicated that, although the divorce decision did not set out any contact schedule, she had always encouraged E. to spend time with her father. Nevertheless, lately she had noticed that the child had a reserved attitude towards meeting her father alone, and the girl had asked her also to be present during those meetings.
13.  A report on the social investigation conducted by social services after carrying out on 10 April 2003 a home visit to M.S. and discussions with both the child and the mother indicated that the mother had not prevented the applicant from visiting the child, but on the contrary she tried to encourage their relationship, given the fact that the girl suffered considerably after her parents’ divorce. The report also indicated that the applicant continued to see E.
14.  In a judgment of 25 April 2003, the Bucharest District Court (“the district court”) concluded that the applicant had the right to maintain personal relations with the child in the absence of M.S., as, on the basis of the evidence adduced, it could not be concluded that such a visiting schedule would be contrary to E.’s interests. The court noted further that with wisdom, tact and affection the new reality could be explained to the child and she had to be helped to accept the existing situation.
The court established that the applicant could spend time with E. at his home every second Saturday between 10 a.m. and 6 p.m., and every other alternating Sunday between the same hours, as well as for one month during the summer holiday, half of the winter and spring holidays and on alternate Christmas, New Year’s Eve and Easter celebrations.
The judgment became final, as no appeal was lodged.
15.  On 10 July 2003, the applicant lodged a criminal complaint against M.S., alleging that she had not complied with the final judgment of 25 April 2003, which defined his contact rights with E.
16.  During August 2003, the investigating authorities took statements from the proposed witnesses and the mother. The child also gave a statement on 24 November 2003, stating that she did not want to see her father and that her mother allowed her to meet him but she did not want to.
17.  On 2 December 2003, the prosecutor decided not to pursue M.S. criminally, considering that the non-compliance with the said judgment could not be imputed to her, but to the child’s refusal.
18.  The applicant lodged a judicial complaint against the prosecutor’s decision. By a first-instance judgment of 4 March 2004 the Bucharest District Court referred the case back to the prosecutor for the investigation to be continued. The court considered that, given her age, the girl did not have a full understanding of her refusal to meet her father and under these circumstances, it was expected that it was M.S.’s duty to inculcate in her a positive attitude towards the father and that the prosecutor had ignored statements by M.S. in which she admitted that she had agreed to allow the father to visit the girl only in her presence. The court also considered that it was necessary to prepare a psychological expert report (“expertiză psihologică”) in order to identify the real cause of the girl’s refusal to meet her father.
19.  The file was sent back to the prosecutor. M.S. and one witness indicated by the applicant were heard again. The mother declared again that she was not preventing the child from having contact with the father, but the child was afraid of him and did not want to meet him. The witness said that on one occasion she had met the three of them and E. had refused to join her father, pleading with M.S. not to go away.
20.  E. gave further statements, on 23 November 2004 and 19 January 2005, stating that she refused to have contact with the applicant because he had threatened on several occasions that he would hurt her mother if she refused to do so.
21.  The investigating authorities asked for a psychological assessment (“evaluare psihologică”) to be prepared. The assessment, carried out by social services on 12 May 2005, indicated that the child was suffering from anxiety and sleep problems and that she needed to be in a harmonious environment, avoiding situations that could stress her.
No psychological expert report could be prepared, as several institutions summoned to carry out such a report declared that it was not within their responsibilities.
22.  In a decision of 13 July 2005, the prosecutor decided not to pursue criminal proceedings against M.S. because she did not intend to prevent the applicant from having a personal relationship with the child. It further held that it was not necessary to conduct a psychological expert report, taking into account that such a report could not establish with certainty whether M.S. was in bad faith on this matter.
23.  The applicant was notified of the decision only at a later date during 2006, and he lodged a judicial complaint against it.
24.  In a first-instance judgment of 20 June 2006 the Bucharest District Court dismissed the complaint. The court noted that the prosecutor heard the witnesses indicated by the parties again and that a psychological expert report would not have been conclusive for the outcome of the case. The child had many times expressly stated in front of the investigating authorities and social workers that she did not want to see her father. The same state of affairs had been confirmed by her teacher and by the neighbour taking care of her. None of the evidence indicated that the child wanted to see her father and M.S. was preventing her.
The court further held that the father’s expectation that the child should understand that state authority prevails over parental authority was exaggerated; the child only understood his intention to harm her mother, hence her reaction; M.S.’s failure to attend some of the meetings with the social workers needed to be assessed in a general context, and taking into account that this attitude had been shown only after a number of meetings with social workers, conducted at their home.
The court concluded that the decision not to pursue M.S. criminally did not amount to an incentive not to comply with the final judgment defining the applicant’s contact rights with the child; this decision was the result of the conclusion that the conditions required to attract criminal liability had not been met. The applicant could pursue the forced enforcement of the said judgment, according to the procedure regulated by the Code of Civil Procedure; but regard must be had to the fact that only a responsible attitude on the part of the parents and of the experts to whom the parents have turned could lead to a normalisation of the father-child relations.
25. The Bucharest County Court, in a final decision of 4 August 2006, allowed an appeal by the applicant against this judgment, holding that the prosecutors should have listened to other witnesses and should have conducted a psychological expert report.
26.  The case was again referred back to the investigating authorities.
27.  The child was assessed psychologically by the psychologists of the Directorate for Social Assistance and Child Protection during March 2008. The conclusions of the report are presented in paragraph 63 below.
28.  The applicant, M.S. and E. made statements before the prosecutor on different dates in August 2008.
29.  The main elements of the girl’s statement were the following:
a)  for a while, until 2003, she had a good relationship with her father. Then he started visiting her at school and sending letters asking her not to tell M.S. about it; she felt uncomfortable as she did not have any secrets from her mother;
b)  because of the letters she started fearing that he had something to hide, and this was why she wanted her mother to be present too; she spoke daily with him on the phone, she did not understand why he had to send her letters;
c)  her father used to call her on the phone to tell her that he would hurt M.S. badly; he kept her for hours on the phone to tell her this; she started having nightmares and dreaming about her mother’s grave;
d)  at the beginning of August 2008, he took her by force and pushed her into his car. She was very upset. He did not even call to announce that he was coming. Her opinion did not matter to him;
e)  maybe in his own way he loved her; but she did not like it that he had something against M.S.; he acted as if he intentionally wanted to harm her. If he loved her, he would not do so. This was her reproach to him. She told him this several times and he told her that he could not do anything about it, but he had to lodge judicial actions. She did not understand it;
f)  since the previous winter she had not wanted to see him at all. He did not call her for several weeks, after which he appeared at their door with the bailiff and several policemen. She started shaking when she saw so many policemen;
g)  she would like her father to stop all his complaints against her mother;
h)  she still cared for her father, but only a little now. There were things that disturbed her about him. She did not have the feeling that he tried to make any effort to make things better;
i)  she went several times to the child protection authorities. The people there were nice, but she did not like going there. Her classmates who had divorced parents did not have to go there; it was difficult for her to tell them why she was upset, because they were like foreigners to her.
30.  By a decision of 25 August 2008, the prosecutor terminated the criminal proceedings against M.S., concluding that she was not obstructing the enforcement of the judgment defining the applicant’s visiting rights.
31.  In respect of the indications given by the Bucharest County Court in its decision of 4 August 2006, the prosecutor noted that the applicant had been asked to suggest other witnesses who would support his allegations. However, he did not produce such witnesses, stating that “[he] had lost [his] trust in this prosecution unit and therefore, [he] refused to produce these witnesses. [He] reserved the right to indicate their name when [he] considered the moment to be opportune.”
32.  As regards the indication to conduct a psychological expert report, the prosecutor noted that the National Forensic Institute had responsibility to conduct only psychiatric expert reports, which was not the type of report needed in the instant case. The prosecutor nevertheless relied on the conclusions of the psychological assessment carried out by social services.
33.  The prosecutor further took note of the applicant’s statements according to which “it was the mother’s duty to comply with the visiting programme. If she had not been able to influence the child in the direction set by the court (...), she had to pay for it”. The prosecutor indicated that the crime punished by Article 307 of the Criminal Code implied an action from the side of the accused; or the factors for which the applicant held M.S. responsible were actually a lack of action, namely that she failed to inspire in the girl positive feelings towards him.
34.  In other statements taken into account by the prosecutor in his decision, the applicant declared that he did not see any harm in the fact that a child needed to be aware that state authority was above parents’ authority and that even if a harsh law might frighten a child, that law should be obeyed. The applicant considered that it was not in the best interest of the child to take her moods into account. A child needed to learn that he or she had responsibilities too. The fact of taking a child away with him, even by force, did not mean that he was torturing the child.
35.  As regards M.S.’s refusal to attend some of the psychological counselling sessions, the prosecutor underlined that this obligation had not been set by the final judgment defining the applicant’s contact rights. The prosecutor then analysed whether this absence showed M.S. to be in bad faith. The prosecutor relied on the child’s statements according to which she did not like to go to the social assistance office. He considered that one could not expect a parent to remain indifferent to a child’s attitude towards these meetings, and that this was the reason why M.S. had refused to attend some of the meetings with social workers.
36.  The applicant’s complaint against the prosecutor’s decision was dismissed by a first-instance judgment of 17 June 2009. This judgment was upheld by the Bucharest County Court, in a final decision of 1 October 2009. The county court explained that the crime under Article 307 § 2 of the Criminal Code implied acts by a person who had resident status with a child aimed at preventing the other parent from maintaining a personal relationship with the child. But in the instant case M.S. had not taken such actions; she had only expressed her disagreement with forcing the child to do something she did not want to do. No elements indicated that M.S. was the one who had induced the negative feelings in the child. It was also concluded that no other psychological report was needed, in the light of the reports already conducted and relied upon by the prosecutor and the first-instance court.
37.  During 2004 the applicant lodged several requests for assistance from social services, indicating that he still had problems in communicating with his daughter, who was refusing to meet him. He held that this was due to the pressure exerted on the child by M.S.
38.  A social worker visited the mother and the child at their home on 19 May and 17 June 2004. On both occasions, they noted that the two had a strong and affectionate relationship. The child declared she did not love her father and she was afraid of him; the mother undertook to enrol E. on a counselling programme. Further interviews were conducted by social services with the neighbour who sometimes took care of E. after school hours until M.S. returned from work, and with her school teacher. Both indicated that E. had previously had a good relationship with her father, but that recently she had refused to see him any more. According to these statements, E. refused to meet or talk to her father even when she was alone, without her mother around. The school teacher indicated that the father had visited E. several times at the school.
39.  On 14 July 2004, a written notification was sent to M.S. recommending her to enrol E. on a counselling programme.
40.  From the information available in the case file, it appears that the girl was enrolled on a counselling programme with a psychologist from an unspecified date during the summer of 2004.
41.  Following a new request from the applicant, by a letter of 27 October 2004 social services informed him of the steps taken and confirming that they would continue to monitor the situation of the child in the following months.
42.  The applicant made renewed requests for assistance, indicating that he was willing to do anything possible to help restore the psychological balance of the child.
43.  M.S and E. were invited for a meeting with social services on 14 March 2005. The report drawn up on that occasion indicated again that E. did not want to meet her father, that she did not trust him any more and that she feared that he had tried to hurt her mother. The social worker proposed a trilateral meeting, but M.S. refused this proposal, after seeing that E. did not agree with it.
44.  On 17 March 2005, M.S. gave a new statement to social services, reiterating the same elements. She also mentioned that she had insisted that E. go to the birthday party of her paternal grandfather, who was ill. Since then, the girl had seen her father once, when he came to bring her a birthday gift, but she had refused to leave with him.
The mother indicated that all these events in the life of her daughter had created in her a feeling of fear, and that she had therefore enrolled the girl in a counselling programme, which she attended weekly.
45.  A new social investigation report was prepared on 31 March 2005, following a home visit and discussions between the social worker and E. and the mother. The report concluded that E. was still refusing to meet her father and she was not prepared to meet him. The child believed that her relationship with the applicant would have been better if he had not tried to hurt her mother by making all “his complaints to the courts, the police and threats”; the mother reiterated that she was not preventing her daughter from having a personal relationship with her father, but that she did not want to force her to meet him against her will.
46.  During a visit to the child’s home on 31 March 2005, the social worker obtained the mother’s approval for more frequent meetings at their home. The mother refused to have meetings at their headquarters.
47.  The social worker made a new home visit on 11 April 2005. She talked with the child about the relation between the child and the father, E. repeating that she did not wish to see him and that she would like to be left alone.
48.  On 20 April 2005, M.S. and E. went to social services and they discussed the counselling programme in which E. was enrolled within the Institute for the Protection of Mother and Child; the girl refused the proposal to meet the applicant at their offices.
49.  On 12 May 2005, the psychologist in charge of E’s case prepared a psychological assessment (“evaluare psihologică”). The test concluded that the girl presented certain disorders of a neurotic character (reactive to stress). It recommended psychotherapy and a harmonious emotional climate, by avoiding stress and situations that may cause psychological trauma.
50.  By a letter of 8 June 2005 the applicant was informed that the social worker had come to the conclusion that it was the child’s own decision not to meet him and that their attempts to set up a meeting at their office between him and the child had failed because of a very vehement refusal from E.’s side.
51.  The applicant lodged several complaints with the social services office and with the superiors of the social worker in charge of the case, expressing the concern that the case had not been handled properly.
52.  Following the applicant’s renewed complaints, social services proceeded to request M.S. to present herself at their office for further discussions. M.S. did not attend the proposed meetings.
53.  During 2006, M.S. was invited several times to attend meetings with the social worker in charge of the case. She did not attend these meetings.
54.  On 23 June 2006, the Bucharest District Court invited the General Directorate of Social Services and Child Protection (formerly the Public Service for the Protection of Children in Difficulty or Handicapped, hereinafter “GDSACP”), to submit a copy of their file on the case, as well as to state whether they had experts who could conduct psychological expert reports (“expertiză psihologică”) on minors.
55.  By a letter of 25 May 2006, GDSACP informed the district court of their activities in respect of E. and that they had employees who were psychologists whose responsibilities included the psychological assessment and counselling of children.
56.  The county court then asked GDSAPC to specify whether their experts could determine with certainty whether the rejection of one parent by a child is due to influence exerted by the parent who is resident with the child. GDSAPC informed the county court that their experts were of the opinion that it was not possible to determine with certainty the influence exerted by the parent with residence in respect of a child’s attitude towards the other parent.
57.  On 25 September 2006, the social worker in charge of the case file closed it, noting that the mother held that she did not oppose the child having a relationship with her father, but that the child was continuing to refuse to meet him and that after several complaints addressed to different public authorities the father had stopped contacting social services.
58.  On 12 October 2006 the applicant again contacted social services, complaining that the situation had worsened. He asked them to reopen the case. Letters were sent to M.S. on several occasions inviting her to meetings to discuss the situation of the child. M.S. did not reply to the invitations, although a few times she telephoned them to notify them that she would not be able to attend the meetings, either due to her work schedule or to illness.
59.  On 24 May 2007 the social worker talked to the maternal grandfather, who declared that the applicant saw E. often and they went out together for walks. On 21 August 2007 the social worker had a telephone conversation with M.S., who informed her that E. had spent the first part of her summer holidays with her father.
60.  On 19 December 2007 M.S. and E. visited the office of GDSACP. On that occasion, E. gave another written statement in front of two social assistants, declaring that she did not want to meet her father, that she did not like the way he had behaved towards her during the summer holidays, when she had had to spend two weeks with him and he had threatened to harm her mother if she did not agree to go with him.
61.  On 19 February 2008, at the request of the prosecutor investigating the case against M.S., GDSACP issued a report on the case. The report showed that the applicant had lodged a criminal complaint against M.S., which strengthened the feelings of rejection shown by his daughter. In respect of M.S. the report concluded that at the beginning she had cooperated well with them, but that lately her attitude had changed and she was not responding to their requests for meetings.
62.  From the information submitted by the applicant it appears that during 2008 E. was subjected again to a psychological evaluation by experts from social services. The assessment report was prepared on 20 March 2008, after three meetings with the child.
63.  The report noted that the child was tense during these meetings. In respect of her relationship with her parents, the report concluded that her relationship with her mother had an emotional basis, E. perceiving her mother as a supporting element, while she was ambivalent in her relationship with the applicant. The girl showed a strongly negative attitude towards paternity, the report concluding that the basis of the child-father relationship was insufficiently structured and consolidated. The current situation had triggered the development of a latent aggressiveness, the child being “overloaded” with problems specific to her parents.
The conclusions of the report were as follows: there was a need to ensure an emotional basis which would support the development of the child’s personality. It was necessary for the parents (especially the father) to respect the child’s rhythm and adapt to its specific characteristics so that the child could internalise according to her own feelings both her relationship with her parents and the situation she was facing. This could allow an adequate and balanced integration of the maternal and paternal sides of the girl’s life. The report further recommended psychological counselling for the child, as well as for the parents, in order for the latter to understand and assume their roles as parents. It was recommended that a stable environment be ensured for her, in order to avoid exposing the girl to situations that could generate inner conflicts and have a negative impact on her psychological state.
64.  The mother, informed of the conclusions of the report, indicated that she would enrol E. again in a counselling programme, with a psychologist the girl knew from before and was comfortable with.
65.  A note prepared by social services on 21 October 2008 showed that the relations between E. and the father remained tense, the father having lodged a new judicial action to obtain residence rights in respect of the child, despite the fact that she wanted to stay with her mother.
66.  During November 2008, M.S. and the child were again invited to social services to discuss their case further. E. declared that she was aware that her father had the right to see her, but she did not want to see him, because she did not feel good in his presence. She said that when they met he brought along various people to act as witnesses. One day, in front of her mother and a friend of his father, the applicant took her by force and put her in his car. Her father called her almost daily and they could not have a normal conversation because he did not listen to her and told her she was not right.
67.  On 7 December 2007 the applicant made a request to the bailiff for the enforcement of the judgment setting out his contact rights. He asked for the necessary actions to be taken so that he could spend the first two weeks of the winter holidays with E., starting from on 21 December.
68.  On 12 December 2007 the Bucharest District Court authorised the request to proceed with the enforcement on a non-working day, a Saturday, with a view to taking the child away for the first two weeks of the winter holidays.
69.  On 22 December 2007 the bailiff, in the presence of M.S., the applicant and the child, drew up a report noting that she could not proceed with the enforcement, as E. refused to join her father.
70.  On 14 January 2008 the applicant made a new request for the bailiff to continue with the enforcement. The bailiff refused to take further action, noting that the first request concerned the winter holidays, which were already over. The bailiff also considered that the applicant had actually disputed the note prepared on 22 December 2007 because he judged that E.’s refusal to join him did not constitute an obstacle to the enforcement and that if she tried to resist “she could be forced, obviously not by slapping or ill-treatment, but by being firmly taken by the hand by the bailiff or by the policemen and then passed over to the father”; “[the father] in principle could be waiting at home and the child be brought to [him]”.
71.  The applicant lodged a judicial complaint against the bailiff, asking that the note of 14 January 2008 be declared void. The complaint was dismissed by a final decision of the Bucharest District Court on 7 January 2009, with the reasoning that in his initial request of 7 December 2007 the applicant had limited his enforcement request to the winter holidays and that that request had been dealt with by the document of 22 December 2007.
72.  The applicant lodged a new request for enforcement with the bailiff in respect of the summer holidays of 2009. The bailiff lodged a request with the court for the enforcement to be authorised. A summons was sent to M.S. on 1 September 2009. The latter replied on 11 September 2009, indicating that E. would be starting school on 14 September 2009 and the holidays were already over. Moreover, she indicated that E., 15 years old at the time and with the ability to make her own decisions, was still refusing to meet him.
73.  On 16 September 2009, M.S. and E. visited the bailiff’s office. E. declared that she wanted her father to stop spoiling her peace of mind with his complaints and legal actions. She wanted to clarify all misunderstandings, as well as to define their future relations. In this respect she wanted to have these discussions with him at the bailiff’s office, in the presence of the bailiff, a lawyer and her mother. It was agreed that E. would propose a date for this discussion, to be communicated well in advance to the applicant too.
74.  By a letter of 18 September 2009 the bailiff informed the applicant that E. was proposing a meeting on 2 October 2009.
75.  On 29 September 2009, the applicant emailed the bailiff, indicating that he could not accept the proposed meeting, because accepting E.’s invitation would mean teaching her that her moods were superior to her legal obligations, especially in a vital issue such as relations with a parent.
76.  According to the report drawn up by the bailiff on 2 October 2009, E. declared that she was disappointed that her father had not come and that he considered her request to meet him a sign of disrespect. She further stated that she did not understand why her father had lodged numerous complaints with the police, the bailiff, the prosecutor and social services, when no one had ever been opposed to her having a personal relationship with him, especially given the fact that they communicated very often by telephone. She declared that she was aware that her father had the legal right to visit her, but at the same time she also had the same right to visit him when she wanted to, without being forced against her will to exert this right. She further stated that the applicant had said to her that she did not have the right to choose whether she wanted to be with him or not, because he was the one who had to decide and she had to listen to him.
77.  On 28 December 2007, M.S. lodged a civil action on behalf of E. to have the applicant’s contact rights redefined in the sense that E. would have the freedom to choose the dates and means of maintaining the personal links with her father. M.S. indicated that the girl started to fear that she would be taken by force against her will and had asked her to do everything possible to avoid such disturbing events and make sure that her right to meet her father when she wanted and when she needed it was officially recognised. Hence the civil action lodged by M.S.
78.  A report on the psychological assessment of the child indicated that E. was suffering from slight emotional immaturity, shyness and social introversion, and was afraid of being separated from her mother. She presented feelings of fear in respect of the father, hostility and aggressiveness. The cause of these feelings proved to be her emotional identification with the mother but also the methods chosen by her father to enforce his contact rights with her.
79.  In a decision of 10 March 2010, the county court considered that it was its duty to establish a balance between the necessity to pursue the best interest of the child against the right of the divorced parent who did not have residence rights to maintain personal relations with the child. It then considered that the girl’s wishes could not represent the only criteria to be taken into account when deciding on the specific way of maintaining personal links between the parent and the child. Therefore it concluded that there was no need to modify the contact schedule.
80.  No information is available in the case file as to whether this decision was appealed against.
81.  The initial quantum of the child support to be paid by the applicant to the child was set out in the divorce decision of 1998. Since then M.S. asked twice for an increase in the amount, in proportion to the increase in the applicant’s income. Her first request was allowed by a final decision of the Bucharest County Court of 28 February 2008.
82.  The second action was allowed in a first-instance judgment of 25 November 2008. The Bucharest District Court increased child support from 1,073 Romanian lei (RON), approximately 284 euro (EUR), to RON 1,136 (approximately EUR 300).
83.  The applicant lodged an appeal on points of law, arguing that a child could not have higher needs than the equivalent of the minimum salary per economy (RON 350, approximately EUR 90) and it had not been proven what needs were meant to be covered by this increase. He held that the fact that the mother had interfered with the child’s compliance with his right of contact meant that he had no guarantees that the child support would be spent in the best interest of the child. There were no guarantees that the mother, in order to satisfy the momentary wishes of the child and to keep the child on her side, would not use the money to buy heroin to the girl.
84.  By a final decision of 19 March 2009, the Bucharest County Court dismissed the appeal, by showing that the Family Code provided that the level of child support was determined according to the financial means of the debtor and that the obligation to pay child support and the obligation of the mother to comply with his contact rights were independent of each other.
85.  From the information submitted by the applicant, it appears that he lodged a separate civil action in order to obtain residence rights in respect of E. No information is available as to the final outcome of these proceedings.
86.  The applicant also lodged various civil and criminal complaints against the prosecutors investigating his complaint against M.S. and against the lawyer representing her in the different proceedings, accusing counsel of inciting M.S. to show disrespect to the final judgment of 25 April 2003.